Homer v. Homer

Mobtoh, J.

This is a bill in equity in which the plaintiff seeks to compel the defendant to convey to him certain real estate therein described. The plaintiff bases his claim upon two grounds. The first is, that it was agreed by all the members of the firm of Homer, Caswell & Company that the plaintiff should have the real estate as compensation in part for his services in settling the affairs of the firm, and that the defendant holds the whole estate in trust for the plaintiff. The second is, that the defendant held the estate in trust for the partnership, and that by the transfer to the plaintiff, by the junior partners, of their interest in the account against Matthias E. Homer & Company, he was substituted to their rights, and thus is entitled to three fifths of the land in question. We are of opinion that neither of these claims can be sustained.

As to the first, it is a sufficient answer that there is no proof that the defendant. agreed that the plaintiff should have the estate. But if this were otherwise, there is no instrument in writing signed by the defendant creating or declaring a trust con cerning this land. Gen. Sts. c. 100, § 19. The memorandum upon the ledger of the firm is entirely insufficient as a declaration of trust. It does not describe the land; if it is to be deemed to refer to the land, it does not indicate an intention to hold it in trust; but the more natural import of its language is, that the defendant is to hold the land as his own and pay the plaintiff for his services.

It is equally clear that the second position taken by the plaintiff cannot be sustained. There is no written memorandum signed by the defendant creating or declaring a trust concerning the land. An implied or resulting trust, in favor of the firm, will not be created, in a case like this, unless it appears that the purchase of the land was made for the firm and for its use. In this case, the proof is plenary, that it was the understanding of the partners that the defendant should take a conveyance of the land for his own benefit, and should account with the other partners for the proceeds or reasonable value of it. Upon these facts, no implied or resulting trust arises in favor of the partnership. Richards v. Manson, 101 Mass. 482.

It is clear therefore that the plaintiff cannot maintain his bill m its present form.

The report provides that if the plaintiff, upon any amendment of his bill, could have relief upon the case stated, he is to have leave to amend accordingly, and upon paying costs to the defendant, and taking no costs himself to the time of the amendment, to have such decree entered, by reference to a master or otherwise, as equity may require. Upon the case stated, we see no ground of liability of the defendant, unless it be that the plaintiff is entitled to recover of him three fifths of the proceeds of the land in question. If the two junior partners assigned to the plaintiff their interest in the proceeds of the land, and the defendant assented thereto, 'it would seem that the plaintiff is entitled to recover three fifths of such proceeds, unless his claim is barred by the judgment in the former suit between these parties. For this he could maintain an action of contract. The only change he can make in the pleadings in this suit, to present this claim, is to strike out substantially all the allegations of his bill and substitute averments which would be equivalent to a declaration for money had and received. We think that such a case does not come within the scope or spirit of our statutes of amendments. Under these statutes, amendments are liberally allowed, where they are necessary to enable the plaintiff to sustain the action for the cause for which it was intended to be brought. But in this case the only change which could avail the plaintiff, upon the case stated in the report, is the substitution of a cause of action different from the one for which the suit was intended to be brought, and which is properly cognizable at law and not in equity. We are of opinion that such an amendment ought not to be allowed.

Bill dismissed.